Proof of Service Perjury
If I had a nickel for every proof of service that I’ve received where the person serving the documents has committed perjury, I’d have a lot of nickels. It happens all the time and it drives me bananas. This is how it works: The other party in a case that we’re litigating serves my office with documents that include a proof of service. The proof of service is signed by the person who served the documents. That person has committed perjury. The funny thing is, they’ve committed perjury and they don’t even realize it. Let’s imagine you’re the person at the law firm who is tasked with serving documents on the opposing party. Let’s also imagine that you’re old school and you’re going to serve the documents by mail where you physically drop them in a mailbox. (The principle is the same for electronic service, which we all use nowadays, but the illustration is more obvious if we use the service by mail example.) You’ve got your nice little stack of documents all ready to serve on the opposing party. You’ve also prepared a proof of service. The proof of service says, “I served the documents by enclosing them in an envelope and depositing the sealed envelope with the United States Postal Service with postage fully prepaid.” Then it says, “I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.” Without giving it a second thought, you go right ahead and sign the proof of service. Heck, you’re the person serving the documents, right? Why not go ahead and sign the proof of service? You nonchalantly, and without a care in the world, go ahead and sign the proof of service. You then take the stack of documents and the signed proof of service, put them all in an envelope, seal the envelope, put postage on it, take a stroll down to the nearest mailbox, and drop the envelope inside. With a big smile on your face, you walk back to your office and proudly check off that task from your to do list.
Great job! You’ve just committed perjury!
Why is This Perjury?
Let’s use our imagination again. How can you sign a proof of service confirming that you “served the documents by enclosing them in an envelope and depositing the sealed envelope with the United States Postal Service with postage fully prepaid” when that proof of service is already enclosed in the envelope and has already been dropped inside a mailbox? You can’t. It’s impossible. You’ve signed the proof of service before you’ve served the documents by dropping them in the mailbox. The proof of service needs to be signed after you serve the documents! Not before you serve the documents!
How Do We Not Commit Perjury?
How do we get around this seemingly impossible situation? It’s very simple. When you serve documents on the other party, include an unsigned proof of service with the documents. After you serve the documents, then you sign the proof of service. The proof of service that you sign will be kept in your file materials. The signed copy of the proof of service does not get served on the other party. If they ask for a copy of the signed proof of service, you can send it to them. If you’re filing documents with the court, file the signed proof of service with the court, since you’re already done serving the documents on the other party. Same thing with electronic service. How can you sign a proof of service that you’ve served a document by email when you haven’t sent the email yet? The proof of electronic service can only be signed after the documents and unsigned proof of service have been sent by email.
The Final Word on the Matter: Code of Civil Procedure § 1013(b)
If you don’t believe me, check out California Code of Civil Procedure § 1013(b): “The copy of the notice or other paper served by mail pursuant to this chapter shall bear a notation of the date and place of mailing or be accompanied by an unsigned copy of the affidavit or certificate of mailing.” The proof of service accompanying documents served by mail must be unsigned under CCP 1013(b). Unsigned! Unsigned! Unsigned! Not only that, but under CCP 1013(b), you don’t even need to include a proof of service! You could just skip the proof of service altogether as long as the documents “bear a notation of the date and place of mailing.” You could literally just scribble the date and place of mailing on the documents and you’re good to go under CCP 1013(b).
Perjury problem fixed!
If you would like a free consultation regarding a personal injury matter, or would just like to argue about whether you should sign a proof of service before serving documents on the other party, please call Suits Litigation, Inc.’s office in San Jose, California at (408) 637-5413.